Opinion 14-100
June 12, 2014
Digest: Under the circumstances described, a Surrogate may, in his/her discretion, participate in meetings with the local public administrator and court personnel to the extent he/she deems necessary to discharge his/her statutory oversight functions.
Rules: SCPA §§ 1102; 1109; 1123(1); 1202; 1208(2); 1213(1); 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(a); 100.3(B)(6)(d); 100.3(B)(6)(e); 100.3(C)(1); 22 NYCRR 207.63; Opinion 07-188; In re Estate of von Knapitsch, 296 AD2d 144 (1st Dept 2002).
Opinion:
The inquiring Surrogate judge states that, in response to concerns about whether the local public administrator is properly performing his/her fiduciary duties, a committee of court personnel was formed to meet regularly with the public administrator to “more closely monitor the performance of [the] office.” The judge asks if he/she may also attend these meetings, in his/her oversight capacity, “notwithstanding that there may be discussions concerning pending proceedings before me.”
According to information provided by the inquiring surrogate, a public administrator “is appointed to administer estates where there is no one available to administer the estate; where there are no known heirs; or when an administrator or execut[or] is disqualified from administering an estate and no one else is available. In addition the public administrator is a statutory necessary party in certain proceedings.”1 It appears a public administrator is, in essence, a court-appointed fiduciary,2 and the inquiring surrogate emphasizes that “proceedings in which the public administrator appears typically [have] other parties appearing as well.” Indeed, the proceedings may be contested (see e.g. In re Estate of von Knapitsch, 296 AD2d 144 [1st Dept 2002] [affirming denial of executors’ motion to dismiss public administrator’s objections to will]).
There is substantial court oversight of public administrators. The inquiring surrogate notes they are “appointed by and may be removed by” the Surrogate’s Court, although it appears public administrators may continue in office indefinitely if not removed by the court (see SCPA §§ 1102, 1202). Each month, a public administrator must file with the surrogate “a statement of such of his [or her] accounts as have been closed or finally settled” in a specified format (see SCPA §§ 1109, 1208[2]).3 In addition, every six months, a public administrator must also make a filing with the surrogate regarding certain estate accounts that have not been fully distributed or settled (see SCPA §§ 1109, 1208[2]).4 As noted in the inquiry, court rules also recognize the surrogate’s oversight role and provide for a year-end annual report as follows:
(a) Each Surrogate shall request from the public administrator a year-end annual report which, with the participation of the counsel to the public administrator, addresses the following areas: office procedures and record keeping; case management of estates; cash management of estate accounts and financial assets; property management; sale of real and personal property; selection and compensation of outside vendors; and statistical summaries of number of estates under administration, gross value of estates under administration, statutory commissions earned by the public administrator or counsel to the public administrator, legal fees earned by each counsel to the public administrator, and expenditures by the public administrator on vendors, lessors and other service providers other than counsel.
(b) Each Surrogate shall transmit to the Chief Administrator of the Courts the annual report of the public administrator and counsel to the public administrator, together with whatever written commentary thereon the Surrogate deems appropriate and necessary in view of his or her oversight role in connection with the operations and performance of the office of the public administrator and counsel to the public administrator.
(22 NYCRR 207.63). Finally, an administrative board established pursuant to SCPA § 1128 “has jurisdiction over the eleven Public Administrators and over the Chief Fiscal Officers with respect to their estate administrator duties” (http://www.nycourts.gov/ip/pa/index.shtml [accessed June 9, 2014]).
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration and should cooperate with other judges and court officials in the administration of court business (see 22 NYCRR 100.3[C][1]). A judge must also accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law (see 22 NYCRR 100.3[B][6]). Thus, a judge is prohibited from initiating, permitting, or considering ex parte communications or other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding, unless an exception applies (id.). For example, a judge may engage in ex parte communications for “administrative purposes,” if the communications “do not affect a substantial right of any party,” provided the judge “reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and the judge, insofar as practical and appropriate, makes provision for prompt notification of other parties or their lawyers of the substance of the ex parte communication and allows an opportunity to respond” (22 NYCRR 100.3[B][6][a]). In addition, a judge may, with the parties’ consent, confer separately with the parties and their lawyers on agreed-upon matters (see 22 NYCRR 100.3[B][6][d]) and may initiate or consider ex parte communications “when authorized by law” to do so (22 NYCRR 100.3[B][6][e]).
The Committee has previously advised that judges “may attend meetings with lawyers to discuss the functioning and improvement of the court system, even when those lawyers are actively and directly involved in matters before those judges,” subject to certain limitations (Opinion 07-188). In reaching this conclusion, the Committee noted:
The involvement of judges in the administrative process is critical to the effective functioning of our judicial system. In fact, the Rules Governing Judicial Conduct specifically encourage judges to become involved in extra-judicial activities that concern the law, the legal system and the administration of justice [citations omitted]. A key goal of the bench-bar discussions that are the focus of this inquiry is to encourage frank disclosure and discussion of administrative difficulties or successes, concerns and recommendations, by attorneys who frequently litigate in the court system.
(Opinion 07-188). Of particular note, the Committee advised the judges “should not discuss any pending or impending matters or engage in ex parte communications involving matters before them, and should limit discussions to administrative issues only, unless all relevant interests are given an opportunity to be heard” (id.).
Here, of course, the general principle that judges may be involved in improving the administration of justice by, among other things, “encourag[ing] frank disclosure and discussion of administrative difficulties or successes, concerns and recommendations” (Opinion 07-188), is further buttressed by a surrogate’s substantial administrative and oversight responsibilities for the office of public administrator, which are imposed by statute and by court rules (see SCPA §§ 1109, 1208[2]; 22 NYCRR 207.63).
The Committee therefore concludes the inquiring Surrogate may, in his/her discretion, participate in the proposed meetings to the extent he/she deems necessary to discharge his/her statutory oversight functions, as such ex parte communications appear to be, in essence, “authorized by law” (22 NYCRR 100.3[B][6][e]) and will assist the judge in diligently discharging his/her administrative responsibilities in cooperation with other court officials (see generally 22 NYCRR 100.3[C][1]).
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1 Public administrators serve in the five counties of New York City, and in Erie, Monroe, Onondaga, Nassau, Suffolk, and Westchester counties. In the rest of the state, this “function is carried out by the Chief Fiscal Officer of each county, usually the county treasurer” (http://www.nycourts.gov/ip/pa/index.shtml [accessed June 9, 2014]).
2 A public administrator has “the powers given by law to a fiduciary of a decedent’s estate” as well as additional powers specifically granted by the Surrogate’s Court Procedure Act (see SCPA §§ 1123[1]; 1213[1]). Guidelines on the Unified Court System’s website note that public administrators are subject to “established principles of fiduciary accountability, statutory authority, and/or direction by the court” (http://www.nycourts.gov/ip/pa/pa-Guidelines.pdf at p 1 [accessed June 9, 2014]).
3 In New York City, the public administrator must also file this monthly report with the mayor and comptroller (see SCPA § 1109).
4 In Erie, Monroe, Nassau, Onondaga, Suffolk and Westchester, this semiannual report concerns “all estate accounts that are unsettled” (SCPA § 1208[2]), while in New York City, it concerns estates which have “not been fully distributed within two years from the date when the first permanent letters of administration or letters testamentary were issued” (SCPA § 1109).